In re William H. CA2/7 ( 2022 )

Filed 7/20/22 In re William H. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re WILLIAM H. et al., Persons B314838
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. No.
18CCJP02139A-C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
MAYRA C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Pete R. Navarro, Juvenile Court Referee.
Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Jacklyn K. Louie, Principal Deputy
County Counsel, for Plaintiff and Respondent.
________________
Mayra C., the mother of 13-year-old William H., nine-year-
old Taylor H. and six-year-old Curon H., appeals the August 31,
2021 order terminating her parental rights pursuant to Welfare
and Institutions Code section 366.26,1 contending the juvenile
court erred in ruling she had failed to establish the beneficial
parental relationship exception to termination (§ 366.26,
subd. (c)(1)(B)(i)). We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Dependency Petitions and Mayra’s Failed
Reunification Efforts
On July 16, 2018 the juvenile court sustained a dependency
petition pursuant to section 300, subdivision (b)(1), finding, as
alleged by the Los Angeles County Department of Children and
Family Services, that Mayra and the children’s father,
William H., Sr., had a history of engaging in violent physical
altercations in the presence of the children and that William H.,
Sr.’s violent conduct toward Mayra and Mayra’s failure to protect
the children endangered the children’s physical health and
safety. William, Taylor and Curon were declared dependent
children of the court, removed from their parents’ custody and
placed in the home of the maternal grandparents, where they had
resided since an emergency detention hearing in April 2018. The
1 Statutory references are to this code.
2
court ordered family reunification services and monitored
visitation for both parents. Mayra was directed to participate in
a domestic violence support group for victims, a parenting course
and individual counseling and to undergo a mental health
assessment.
The Department’s status review report for the six-month
review hearing (§ 366.21, subd. (e)) stated Mayra, who was
homeless, continued to maintain a relationship with
William H., Sr. A last minute information for the court, filed
January 14, 2019, reported William H., Sr. had been arrested in
mid-December following another physical attack on Mayra.
Mayra’s visits with the children were monitored by the maternal
grandparents, who indicated Mayra “is struggling with showing
up to the visits and does not visit regularly.” At the hearing the
court found the parents had made no progress toward mitigating
or alleviating the causes for the children’s placement.
The status review report for the 12-month review hearing
(§ 366.21, subd. (f)) stated Mayra had been placed on a
psychiatric hold in mid-May 2019 following an attempted suicide.
The attempt apparently took place several days after Mayra
struck the maternal grandmother during an argument. Mayra’s
visits with the children remained monitored due to her minimal
progress with court-ordered services. At the hearing the court
terminated reunification services for William H., Sr., who
remained incarcerated following the December 2018 domestic
violence incident, while continuing services for Mayra.
By the 18-month review hearing (§ 366.22) in December
2019 and January 2020, Mayra had made significant progress
with her case plan. Her visitation with the children had been
liberalized to unmonitored, and the court ordered them released
3
to Mayra once she secured appropriate housing. In the interim
the maternal grandmother told the social worker she did not
want Mayra living in her home with her and the children.
Mayra obtained housing on April 25, 2020, and the children
were placed in her care on May 1, 2020. The Department noted
the children were bonded with the maternal grandmother and
the move back to Mayra was difficult for them.
On July 14, 2020, following reports that Mayra was once
more in a physically abusive relationship, the children were
again detained and returned to the maternal grandparents’
home. The following week the Department filed a subsequent
petition (§ 342, subd. (a)) alleging Mayra and her male
companion had a history of engaging in violent altercations in the
presence of the children with Mayra once again the victim of the
domestic violence. The section 342 petition, as amended, was
sustained in September 2020.2 The court ordered twice weekly
monitored visitation, but found Mayra ineligible for further
reunification services and scheduled a section 366.26 selection
and implementation hearing.
2. The Section 366.26 Selection and Implementation
Hearing
In its report for the section 366.26 hearing, originally
scheduled for January 8, 2021, the Department explained the
maternal grandmother, who previously agreed she, the maternal
grandfather and a maternal uncle would be co-legal guardians of
the children, now believed adoption would be best for the children
and stated she wanted to adopt them. Because of the change in
recommendation from legal guardianship to adoption, the
2 An allegation Mayra had physically abused William by
throwing a game controller at him was dismissed.
4
Department requested a 120-day continuance to allow it to
explain adoption to the children. Regarding visitation, the report
stated Mayra “sporadically will call and visit the children.” The
court continued the hearing to May 11, 2021.
In a status review report filed in February 2021, the
Department advised the court the children had adjusted well to
being back in their grandparents’ home, where they were happy
and felt safe. Once again Mayra’s visits were described as
“sporadic” and “inconsistent.” During the visits Mayra brought
food and engaged with the children. However, the maternal
grandmother, who monitored the visits, stated “the children
usually want to cut the visit short and do not want to engage
with their mother.” All three children said they liked living with
their grandparents. William and Taylor said they wanted to be
adopted by them.
A last minute information for the court, filed May 7, 2021,
reported the assessment of the grandparents’ home had been
approved and the children appeared bonded to the grandparents.
The maternal grandparents stated they were committed to the
permanent plan of adoption; and the children, when interviewed
by a social worker, stated they would like to be adopted by their
maternal relatives.
The hearing was again continued, this time to August 31,
2021, to allow the Department to provide proper notice to
William H., Sr. A status review report for that date reiterated
the sporadic nature of Mayra’s visits with the children. The
maternal grandmother described the visits as occurring less and
less frequently and indicated Mayra would go about a month and
a half without visiting or calling the children. According to the
social worker, the maternal grandmother also stated “the
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children usually want to cut the visit short and do not want to
engage with their mother for a long period of time.” The children
again expressed their desire to continue to live with the maternal
grandparents, and William and Taylor repeatedly said they
wanted to be adopted by them.
Mayra did not appear at the hearing on August 31, 2021.
Her counsel advised the court, “I do not know where Mother is.
She indicated to me that she would be present.” Counsel
requested a continuance so Mayra could attend the hearing; the
court denied the request for lack of good cause.
As it did in its reports, which were admitted into evidence,
the Department recommended the court find the children were
adoptable and no exception to adoption applied and terminate
parental rights. In response Mayra’s counsel stated, without
elaboration, “Mother would be objecting to terminating her
parental rights. I would argue that the (c)(1)(B)(i) exception
applies. Mother does visit the children. She does not visit as
much as they would like. She is extremely bonded to the
children. So she would ask that the court find that (c)(1)(B)(i)
appll[ies].”3
Minors’ counsel joined the Department’s recommendation
and noted Mayra had only sporadic visits with the children and
“there have been times where she’s gone for a month, month and
a half without visiting or calling the children.” Counsel also
stated William, who was then 12 years old, had informed her that
he wanted to proceed with adoption by his grandparents.
The court found by clear and convincing evidence the
children were adoptable and it would be detrimental for them to
3 Counsel for William H., Sr., also objected to termination of
parental rights.
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be returned to their parents. The court rejected Mayra’s
argument the parental relationship exception applied, stating on
the record, “The parents have not acted in a parental—have not
assumed a parental role in the lives of these children for a
significant period of time. The court finds that no exception[s] to
adoption apply in this case.” The minute orders for the
August 31, 2021 hearing recite, with far more detail than the
court’s brief statement during the hearing, “The Court finds that
any benefit accruing to the child from his/her relationship with
the parent(s) is outweighed by the physical and emotional benefit
the child will receive through the permanency and stability of
adoption, and that adoption is in the best interests of the child.”4
4 Although William, Taylor and Curon had remained
together throughout the dependency proceedings, the maternal
grandparents were identified as the prospective adoptive parents
for all three children, and the sibling relationship exception to
termination of parental rights (§ 366.26, subd. (c)(1)(B)(v)) had
not been mentioned during the August 31, 2021 hearing, least of
all by the court, the minute orders stated, “The Court finds there
will not be a substantial interference with the relationship
between the child and the child’s sibling(s) and that any risk of
loss of ongoing contact between the child and the child’s sibling(s)
is outweighed by the long-term benefit to the child from the
permanency and stability of adoption.”
Including in its minute orders findings not actually made
by the juvenile court undermines the integrity of the proceedings
and is, at the very least, a disservice to the parties and to this
court. We have previously criticized this practice, which is not
confined to this courtroom at Edelman’s Children’s Court.
(E.g., In re T.G. (2020) 58 Cal.App.5th 275, 298, fn. 20.) That it
persists is deeply troubling.
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The court terminated Mayra’s and William H., Sr.’s
parental rights and transferred care, custody and control of the
children to the Department for adoptive planning and placement.
The maternal grandparents were designated prospective adoptive
parents.
Mayra filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
The express purpose of a section 366.26 hearing is “to
provide stable, permanent homes” for dependent children.
(§ 366.26, subd. (b).) Once the court has decided to end parent-
child reunification services, the legislative preference is for
adoption. (§ 366.26, subd. (b)(1); In re S.B. (2009) 46 Cal.4th 529,
532 [“[i]f adoption is likely, the court is required to terminate
parental rights, unless specified circumstances compel a finding
that termination would be detrimental to the child”].)
Section 366.26 requires the juvenile court to conduct a two-
part inquiry at the selection and implementation hearing. First,
it determines whether there is clear and convincing evidence the
child is likely to be adopted within a reasonable time. (In re
Caden C. (2021) 11 Cal.5th 614, 630 (Caden C.); Cynthia D. v.
Superior Court (1993) 5 Cal.4th 242, 249-250; In re J.W. (2018)
26 Cal.App.5th 263, 266.) Then, if the court finds by clear and
convincing evidence the child is likely to be adopted, the statute
mandates judicial termination of parental rights unless the
parent opposing termination can demonstrate one of the
enumerated statutory exceptions applies. (§ 366.26,
subd. (c)(1)(A) & (B); see Caden C., at p. 630.)
One of the statutory exceptions to termination is contained
in section 366.26, subdivision (c)(1)(B)(i), which permits the court
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to order some other permanent plan if “[t]he parents have
maintained regular visitation and contact with the child and the
child would benefit from continuing the relationship.” As the
Supreme Court explained in Caden C., supra, 11 Cal.5th 614,
decided three months before the section 366.26 hearing in this
case, the exception requires the parent to establish, by a
preponderance of the evidence, (1) the parent has maintained
regular visitation and contact with the child, “taking into account
the extent of visitation permitted”; (2) the child has a substantial,
positive, emotional attachment to the parent such that the child
would benefit from continuing the relationship; and
(3) terminating the relationship “would be detrimental to the
child even when balanced against the countervailing benefit of a
new, adoptive home.” (Id. at p. 636; see id. at p. 630 [“[t]he
language of this exception, along with its history and place in the
larger dependency scheme, show that the exception applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child”].) When the benefits of a stable,
adoptive, permanent home outweigh the harm the child would
experience from the loss of a continued parent-child relationship,
the court should order adoption. (Id. at p. 634.) However, “‘[i]f
severing the natural parent/child relationship would deprive the
child of a substantial, positive emotional attachment such that,’
even considering the benefits of a new adoptive home,
termination would ‘harm[]’ the child, the court should not
terminate parental rights.” (Id. at p. 633.)
We review the juvenile court’s findings as to whether the
parent has maintained regular visitation and contact with the
9
child and the existence of a beneficial parental relationship for
substantial evidence. (Caden C., supra, 11 Cal.5th at pp. 639-
640; cf. In re R.V. (2015) 61 Cal.4th 181, 200-201 [“[t]here is,
however, no single formulation of the substantial evidence test
for all its applications”; where a party fails to meet its burden on
an issue in the juvenile court, “the inquiry on appeal is whether
the weight and character of the evidence . . . was such that the
juvenile court could not reasonably reject it”].) We review the
third step—whether termination of parental rights would be
detrimental to the child due to the child’s relationship with his or
her parent—for abuse of discretion. (Caden C., at p. 640.)
2. The Juvenile Court Did Not Abuse Its Discretion in
Concluding Mayra Failed To Establish the Parental
Relationship Exception
Although, as discussed, it was Mayra’s burden to establish
the parental relationship exception, her counsel, bound by an
evidentiary record devoid of facts that would support a finding
the exception applied, made only a perfunctory effort at the
August 31, 2021 hearing to persuade the court not to terminate
parental rights. Counsel stated Mayra visited with the children,
yet acknowledged she had not done so regularly and provided no
explanation for that failure. He asserted Mayra was bonded with
the children without discussing the nature of the children’s
relationship to her and omitted entirely any mention of the
essential third element—whether terminating the relationship
between Mayra and the children and choosing adoption as their
permanent plan would be more harmful than beneficial to them.
For its part, faced with Mayra’s contention the parental
relationship exception applied, the juvenile court made no
findings (at least, as reflected in the reporter’s transcript of the
hearing) regarding the three elements of the exception discussed
10
by the Supreme Court in Caden C., supra, 11 Cal.5th 614.
Instead, relying on pre-Caden C. case law, the court simply found
neither Mayra nor William H., Sr. had “assumed a parental role
in the lives of these children for a significant period of time.”
(See, e.g., In re Breanna S. (2017) 8 Cal.App.5th 636, 646 [“[n]o
matter how loving and frequent the contact, and notwithstanding
the existence of an ‘“emotional bond”’ with the child, ‘“the parents
must show that they occupy ‘a parental role’ in the child’s life”’”],
disapproved on a related ground in Caden C., at p. 637, fn. 6.)
Yet the analysis in Caden C. made clear that proving a parental
role had been maintained was not in every case a prerequisite to
establishing the parental relationship exception. While it would
be destabilizing for a child to lose “a strong, positive, and
affirming relationship” (Caden C., at p. 634), the Court
recognized other types of relationship may be significant enough
to be preserved: “Sometimes, though, a relationship involves
tangled benefits and burdens. In those cases, the court faces the
complex task of disentangling the consequences of removing
those burdens along with the benefits of the relationship.” (Ibid.)
A number of courts of appeal, evaluating a juvenile court
order terminating parental rights without a full analysis of the
applicability of the parental relationship exception as articulated
in Caden C., supra, 11 Cal.5th 614, have reversed and remanded
the matter with directions to conduct a new section 366.26
hearing that conforms to the requirements of that decision.
(E.g., In re D.P. (2022) 76 Cal.App.5th 153, 170; In re D.M. (2021)
71 Cal.App.5th 261, 271; In re J.D. (2021) 70 Cal.App.5th 833,
870.) On this record, however, no practical purpose would be
served by a remand. (See generally In re Jesusa V. (2004)
32 Cal.4th 588, 624 [harmless error doctrine applies in
11
dependency cases]; In re Malick T. (2022) 73 Cal.App.5th 1109,
1128 [same].)
a. Regular visitation and contact
Although Mayra visited the children when they were living
with their maternal grandparents during the first two years of
the dependency proceedings, she failed to do so on a consistent
basis, particularly during the initial period of their out-of-home
placement. As the Department reported, notwithstanding
authorization for monitored visitation, between the children’s
initial detention in early April 2018 and the jurisdiction hearing
in July 2018, the children saw their mother only through the
front gate of the maternal grandparents’ home. There were no
monitored visits. And while Mayra did begin to visit following
the disposition hearing, through the January 2019 six-month
review hearing her visits were irregular.
More importantly as it relates to the parental relationship
exception, after the children were detained following the filing of
the section 342 petition in July 2020, Mayra’s visits were
sporadic; and she did not visit or call the children for extended
periods of time notwithstanding court authorization for
two monitored visits per week. Thus, although the juvenile court
did not address the visitation element, the record lacks
substantial evidence that would support a finding Mayra
maintained regular visitation and contact with her children to
the extent permitted by court orders. (See In re I.R. (2014)
226 Cal.App.4th 201, 212 [juvenile court did not abuse its
discretion in finding beneficial parental relationship exception
did not apply where it was undisputed “there were significant
lapses” in mother’s visitation]; In re C.F. (2011) 193 Cal.App.4th
549, 554 [juvenile court did not abuse its discretion in finding
12
exception did not apply where “overall [the mother’s] visitation
was sporadic”].)
b. Beneficial relationship
The Department’s reports are replete with observations
that William, the oldest child, and to a lesser extent Taylor, the
middle child, were traumatized by the violence between Mayra
and William H., Sr. to which they had been exposed. Neither boy
wanted to return to live with Mayra. Moreover, although Mayra
insisted she had a strong bond with the children and was
described as being engaged with them during visits, the
unilateral nature of that relationship was evidenced by the
children’s lack of engagement and desire to end visits early
during the year preceding the section 366.26 hearing. Nothing in
this record demonstrated the children had “a substantial,
positive, emotional attachment to the parent—the kind of
attachment implying that the child would benefit from continuing
the relationship,” as required for the second element of the
parental relationship exception. (Caden C., supra, 11 Cal.5th at
p. 636.)
c. Detriment from termination of the relationship
The ultimate question, of course, is not simply how
consistently Mayra visited the children or whether they enjoyed a
net positive relationship notwithstanding the difficulties Mayra
experienced as a result of the cycle of domestic violence in which
she was enmeshed, but whether the benefits of stability and
permanence through adoption by the maternal grandparents—
with whom the children had been living for most of the past
three years and where they felt safe—was outweighed by the
harm that would be caused by severing the children’s
13
relationship with Mayra. The juvenile court impliedly found no
such detriment in terminating parental rights.
Mayra disputes that finding, but she has not demonstrated
the court’s conclusion was arbitrary or irrational, let alone that
this case presents the type of “exceptional circumstance” that
would warrant departure from the norm of adoption. (Caden C.,
supra, 11 Cal.5th at p. 631 [the parent-child exception, like the
other statutory exceptions to termination of parental rights, is a
departure from “‘the norm’” of adoption and applies only in
“‘exceptional circumstances’”]; accord, In re Celine R. (2003)
31 Cal.4th 45, 53.) To the contrary, given the minimal evidence
that any positive relationship actually existed between Mayra
and her children, that decision was well within the court’s
discretion.
DISPOSITION
The juvenile court’s August 31, 2021 order terminating
parental rights is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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